Gary Cheung says the NPC should be sparing in the use of its power to interpret the Basic Law, or it risks further alienating the city’s young people

Hongkongers’ fears about another interpretation of the Basic Law by the National People’s Congress Standing Committee came true last Monday. The ruling can certainly kick out Youngspiration lawmakers Baggio Leung Chung-hang and Yau Wai-ching from the legislature, but Beijing is likely to lose more ground in its battle to win the hearts and minds of Hong Kong people.

Mainland officials are right in saying the nation’s top legislative body is empowered to interpret the Basic Law. But what the Standing Committee did went beyond interpreting Article 104; it effectively interpreted the Oaths and Declarations Ordinance, the local legislation to implement the Basic Law provision requiring lawmakers to swear to uphold the Basic Law and swear allegiance to Hong Kong as part of the People’s Republic of China.

The ordinance states that any person “who declines or neglects to take an oath duly requested” shall vacate or be disqualified from office. It already spells out the consequences of failing to comply with the law. But the Standing Committee ruling went further: “An oath taker who intentionally reads out words which do not accord with the wording of the oath prescribed by law, or takes the oath in a manner which is not sincere or not solemn, shall be treated as declining to take the oath.” By doing so, it effectively expands the contents of a piece of local legislation.

Beijing’s decision to interpret the Basic Law indicated its distrust in Hong Kong’s courts, which may not hand down the judgment it favours. But, in fact, Mr Justice Michael Hartmann ruled in a 2004 case that if someone takes the oath in a manner that is inconsistent with the ordinance, thereby altering the substance of the oath, that would be in breach of Article 104 of the Basic Law and therefore would have no legal effect.

NPC Basic Law Committee chairman Li Fei noted last week that the Standing Committee enjoyed the “comprehensive and ultimate power” to interpret the Basic Law. Such authority should not be questioned, he said.

It is true that, after the handover, the Standing Committee can do whatever it likes. But it is a legitimate expectation that Beijing should exercise self-restraint and use the power to interpret the Basic Law sparingly. “One country, two systems” is the product of a political compromise made by Beijing, which recognised in the early 1980s that it would be a failure if the communist system was applied to Hong Kong after 1997.

In an article published in September last year, former chief justice Andrew Li Kwok-nang wrote that the right of abode episode in 1999 had led to a consensus in Hong Kong and, he believed, also in Beijing that apart from an interpretation of an excluded provision made on a judicial reference by the court, the Standing Committee’s power to interpret should only be exercised in the “most exceptional circumstances”. Li was one of the five Court of Final Appeal judges who handed down the landmark judgment in the right of abode case in 1999, which was subsequently overridden by the Standing Committee.

I have been a critic of the two localists since they used derogatory language to insult China during the swearing-in ceremony on October 12. Their childish acts unnecessarily provoked Beijing, which never hesitates to get tough on Hong Kong independence, to intervene in the oath-taking saga.

Mainland officials and the pro-establishment camp are adamant that the interpretation will restore order in the Legislative Council and Hong Kong. But the alienation among the city’s young people towards the mainland and the growing appeal of separatism for them will not vanish with the ouster of the two localists. Instead, the interpretation will only make it more difficult for Beijing to win the hearts and minds of young people and we can expect more radical protests in the years ahead.

Bernard Chan says that, as the uproar over the oaths fiasco grows louder and nastier, a moderate tone from younger, more radical members would be a mark of maturity and inspire opponents to do the same

In mid-September in this column, I discussed the younger generation of lawmakers who had just won seats in the Legislative Council. I saw them as a sign of a new era, as older politicians from both the pro-establishment and pro-democracy camps stand down.

Having once been the youngest member of Legco, I wondered how the newcomers would perform. While they lack experience as legislators, they have idealism and new ideas. The challenge for them is to adapt to their new surroundings and the new range of political policy issues they will have to deal with.

This especially applies, perhaps, to the radical “localists” who have brought a new provocative and outspoken style into politics both in and out of Legco.

As I wrote after the Legco election, two of these newcomers are products of Lingnan University, of which I was council chairman for the last few years. I remember one of them – Nathan Law Kwun-chung, of Hong Kong Island – quite well, as he was also on the council. I did not know the other, Yau Wai-ching of Kowloon West.

Now, of course, everyone knows her. She and her Youngspiration colleague Sixtus Baggio Leung Chung-hang changed the wording when taking their oaths of office for Legco two weeks ago. Among other things, they replaced the word for China with “Cheena”.

In Singapore, it is a tongue-in-cheek anti-mainland slur. But it is also associated with Japanese anti-Chinese militarism. Either way, it is potentially hurtful.

Lingnan puts special stress on developing good judgment, respect for others and effective communication. I would have thought that anyone with experience at a liberal arts college would think carefully about the use of language that potentially angers and upsets other people. Many students and faculty at Lingnan and other campuses will have heard about the controversies in US universities over free speech. What are the limits – where does offensive language become hate speech?

It might seem absurd to advise people (as a university in Colorado has done) to avoid words like “ghetto”, “illegal immigrant”, “crazy” or even “guys”. But promoters of such policies have a point when they say these words can hurt because they are inaccurate. They say the idea is to encourage people to be aware of how caring about the real meaning of words can improve civility.

So this is partly about being thoughtful and considerate to others. In Hong Kong’s badly divided political scene, this is asking for a lot.

Many in both pan-democrat and pro-establishment camps saw the two Youngspiration members’ remarks as at least childish, if not seriously offensive. There is now a major split over whether they can retake the oaths. Some observers call the situation a constitutional crisis.

The conflict is intensifying. The uproar over the oath-taking has led members of both sides to use deliberately insulting and provocative language. It is far worse than anything that happened when I was in Legco. There is a real possibility that Legco’s division will become deeper and harder to mend. The last two council meetings were suspended. Will that happen again next week? The week after?

Even when the court hears the government’s application, it might put the proceedings off to a later date. Or, if the court hands down a judgment, there could be an appeal. Even if we get a quick and certain outcome to the judicial review, one camp in Legco will still be unhappy. Will they continue with walkouts or other action to disrupt the council’s work? How will Legco play its part in solving issues like housing and poverty if it is divided by this sort of bitterness?

And of course this division will be reflected in the wider community, between voters who sincerely supported – and maybe still support – candidates from one side or the other.

I was hoping for a better start to the new Legco. If younger, more radical new members continue to use offensive language, I can see no way out. However, they could indicate that they will moderate their language. That would be a mark of maturity and respect for others, and it would put pressure on their opponents to calm down. Everyone would benefit.
Bernard Chan is a member of the Executive Council

Yonden Lhatoo despairs at the prospect of property developers selling ever-tinier homes to maximise profits at a cost to humanity

“I’m down so low … I declare I’m lookin’ up at down.” Blues musician Big Bill Broonzy sang these famous words in a summation of the sense of hopelessness prevalent during the Great Depression of the 1930s.

Fast forward to the present, and British comedian John Oliver captures the essence of sinking to new lows in his own irreverent style. “Let me just remind you that last Sunday, I told you if you looked above the clouds, you would see rock bottom. But if you look up there now … you will see, right up in the distance, where we were this time last week. Because since then, we have sunk so low, we are breaking through the earth’s crust, where drowning in boiling magma will come as sweet, sweet relief.”

Oliver was talking about the depths to which the US presidential race has sunk, but allow me to borrow his wicked words to illustrate what’s happening to Hong Kong’s property market.

Emperor International Holdings has entered the hall of shame for heartless developers putting profit before people, with plans to build the tiniest homes in the city. With these 61.4 sq ft shoeboxes being mismarketed as homes for humans, can we sink any lower in dehumanising the population of one of the most prosperous cities in the world?

Even Stanley Prison offers more living space for criminals, with the standard jail cell measuring a relatively luxurious 80.7 sq ft.

The only thing left now is to put us all in coffins and be done with it.

And since this is Hong Kong, after all, I wouldn’t put it past our developers. You only have to look at the price-gouging business of running columbariums, where Hongkongers are forced to store the ashes of the deceased in 1 sq ft wall niches.

People get emotional about killer whales in captivity, and how confining them in their marine park tanks is the equivalent of keeping a human in a bath tub all his or her life. Boredom, depression and frustration lead to self-harm and aggression.

Hello? That ring a bell, humans in Hong Kong?

Far more informed and astute commentators than myself have linked the social problems in our city, especially the growing tendency among youth to lash out at the establishment, to housing. It’s just so basic.

When – not if – we have the next iteration of the Mong Kok riot, let’s not ask “why” or “how” any more. Our Ides of March is there for all to see.

I’ve said it before and I’ll say it again. There is enough land and wealth in Hong Kong to house every citizen in relative comfort and dignity. What there is an acute dearth of is the guts, political will and generosity to achieve it.

And yet you heard development minister Paul Chan Mo-po: “The government does not have a magic wand to create land out of nothing.”

Nobody is expecting you to wave any magic wand, Professor Dumbledore. You may be one of our harder-working ministers, but it’s time we all snap out of our lotos-eating reverie and get cracking on the obvious solutions.

For a start, minister, do something about developers’ ample land banks and shameful practice of hoarding empty flats to keep property prices artificially inflated and above the reach of the average Hongkonger.

Perhaps we should begin a public database of the wealthiest and most powerful people in this city, both in the private and public sectors, to give everyone else an idea how much room they have to swing the proverbial cat in. Naming and shaming ought to be a good start, privacy be damned.

Grenville Cross says the city’s justice chief must examine whether the duo’s actions in the chamber indicate they made false declarations in their nomination forms, which is a punishable offence

The making of false statements by people ­involved in official ­proceedings is always a serious matter, particularly if oaths are violated.

To stand in Legislative Council elections, candidates are required, under the Legislative Council Ordinance (section 40), to provide the returning officer with a “nomination form”, in which they declare that they will “uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region”.

Moreover, having made that declaration, a candidate is then supposed, under the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation, to sign a “confirmation form”, which, having reminded the candidate of the original declaration, spells out exactly what is meant by upholding the Basic Law, by reference to specific articles thereof.

This, presumably, is for the purposes of ensuring that, before the candidate signs, he or she fully appreciates what is being signed up to.

The confirmation form reminds the candidate that Article 1 of the Basic Law stipulates that Hong Kong “is an inalienable part of the People’s Republic of China”.

It then, for good measure, alerts the candidate to Article 12, which states that Hong Kong “shall be a local administrative region of the People’s Republic of China, which shall enjoy a high degree of autonomy and come directly under the People’s Republic of China”.

At the end, the confirmation form notifies the candidate that, if he or she knowingly makes a statement which is false in a material particular, an offence will have been committed, and the candidate, armed with this knowledge, may, if he or she accept the conditions, then sign it.

The offence in question lies in the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (section 103). This makes it an offence for a person, in an election-related document, to make a statement which he or she “knows to be false in a material particular or recklessly makes a statement which is incorrect in a material particular or knowingly omits a material particular from an election related document”.

Upon conviction, an offender is liable to a maximum sentence of six months’ imprisonment and a fine of HK$5,000.

Every candidate, therefore, who was successfully elected in the Legco election on September 4, would have made a declaration in the nomination form to uphold the Basic Law, together with a pledge of loyalty to the Hong Kong SAR. They should also have signed the confirmation form, although it has been reported that not all did, and only signed the nomination form, but nonetheless still stood for election.

Of course, some prospective candidates were blocked, by returning officers who doubted their bona fides, from standing for election, and this itself is now the subject of judicial review.

However, every ­candidate subsequently elected must, by their declarations, either in the nomination form, or in the confirmation form, or both, have satisfied the officers that they were genuine, in terms of the qualifying criteria.

However, fast-forward to October 13, and two of those candidates, by now legislators-elect, when called upon in Legco to take their oaths of office, indulged instead in various bizarre antics, designed to make a mockery of a solemn occasion.

Obscenities apart, they pledged allegiance to “the Hong Kong nation”, displayed banners proclaiming “Hong Kong is not China”, and deliberately mispronounced the word “China”. Although the Legislative Council president has vacillated over whether to grant the duo a second chance to swear their oaths, wider considerations are now at play.

If the returning officers who processed the nomination forms of the two candidates had had any inkling of what was in store if they were elected, would they still have permitted them to stand? If not, has the wool been pulled over their eyes? If so, have false declarations been made?

Although the government has ­obtained leave to seek a judicial ­review [5], apparently on the basis that, under the Oaths and Declarations Ordinance (section 21) [6], a lawmaker who declines or neglects to take an oath duly requested forfeits his or her place, with no question of a second chance, other issues are outstanding. The secretary for justice, Rimsky Yuen Kwok-keung, as chief prosecutor, must also consider any possible criminality by the two individuals.

In light of their conduct at the attempted swearing-in [7], how genuine were their original declarations in their nomination forms to the returning officers? What inferences about their real thinking at that time may reasonably be drawn from their subsequent behaviour? Were they simply paying lip-service to the formalities in order to get their names on the ballot paper?

These are necessary questions, and, at the very least, an investigation is required, to determine what declarations were made and in which forms.

Of course, it is possible, if unlikely, that, in the few short weeks between making their declarations and being required to swear their oaths, the two individuals underwent a Damascene conversion, morphing from Basic Law upholders into rabid independence fanatics, and Yuen will need to factor this in.

If, however, he concludes that the evidence, when looked at through a common-sense prism, reveals an offence of making a false declaration to the returning officer, he must then decide if a prosecution is in the public interest.
Grenville Cross SC is a criminal justice analyst

David Oxtoby says students on both sides of the Pacific have grappled with tough social and political issues, and calls on academic leaders to create healthy environments for meaningful debate on divergent ideas

During the past few years, young people on both sides of the Pacific have been in the vanguard of movements focusing on racial, ethnic, and socio-economic discrimination, and academic and political freedom.

In Hong Kong, student protesters in the “umbrella movement” occupied the city’s commercial districts for three months in 2014, and have continued to press their causes, with five Occupy activists elected to the Legislative Council in September.

On campuses across the United States over the last year, students have grappled with issues of racial and economic discrimination and inequality, campus sexual assault, and free speech. Students of colour came together last year as part of the national movement, “Black Lives Matter”. Student protests have demanded the firing of college leaders, including presidents, and some of those efforts have been successful. Adding fuel to campus unrest in the US has been a presidential election campaign that has ­included intolerance for different viewpoints and even hate speech.

With the parallels across the Pacific, there are also important differences. Demands in Hong Kong focus on national-level issues, such as the relationship of Hong Kong and China, while US student demands (though driven by national concerns) focus on campus-level issues, such as bias in the classroom and lack of diversity among faculty and staff.
A false opposition is sometimes set up between inclusivity and free speech; these are core values, not in conflict with one another

Students want deep and immediate change right now. They criticise our responses to their concerns for being too little and too slow. Tensions can escalate, disrupting civil discourse and hardening the positions of groups with opposing views. What can we do – especially those of us charged with teaching tomorrow’s leaders – to create healthy environments that will facilitate important and long-overdue change?

I firmly believe that educational institutions are exactly where these tough discussions on highly controversial topics should and must take place. My highest priorities are:

• To cultivate an inclusive, welcoming environment where every member of the community is a vital part of the life and discourse of the college.

• To ensure that our college is a place where we respect the right to speak, rebut, and respond – even if we don’t agree.

As our student-body president said at convocation this fall, in our national dialogue a false opposition is sometimes set up between inclusivity and free speech; these are core values, not in conflict with one another, but both equally critical to our mission.

What in our experience might be helpful for academic leaders in Hong Kong? First, start conversations and build relationships before crises start and protests are launched.

On our campus, we established a President’s Advisory Committee on Diversity some 10 years ago, and we spent the 2014-15 academic year developing a strategic plan for diversity and focusing board discussions on this issue, so that when protests started in November 2015, I immediately invited the diversity committee to join me in meeting with nearly 200 students. They brought forth a list of demands for more resources for minority and other identity groups, for low-income students, and for mental health care. They called for increased diversity among faculty, students and staff. Students of colour cited countless individual incidents. Their stories affected me on a personal level and have informed and shaped my presidential role. Further, truly listen to enable free speech and create a respectful environment in which it can occur. I met with student groups who identify in very different ways – as international students, as Latino, black, or multiracial students, and as students whose identities intersect in ways we haven’t seen in the past.

These meetings (each including five to 10 students) ensured continuing dialogue and will provide for adjustments in our strategic plan as we become a more global and diverse institution.

Three concluding observations:

• On American campuses, the phrase “safe spaces” is used by students to designate a place where they can spend time with others who are similar to them, and not have to explain themselves or their identities. Of course, freedom of association is a vital right, but what is not right is to exclude certain people from public spaces because they might challenge your views. I prefer to think of a true campus “safe space” as a place where a diverse group of people can come together, have difficult dialogues about challenging issues, listen respectfully, and learn from one another.

• Protest is one form of free speech, and the point of protest is to disrupt “business as usual”, to cause us to listen to a different voice. But if protest is used to shout down others, and to prevent them being heard, then it is a reduction, not an enhancement of free speech. Campus protests should add to our conversations, not close them down.

• Academic freedom is a core value for colleges and universities, and it applies both to faculty and to students. It helps to ensure that controversial views can be put forward and argued without risk of being penalised or fired. But with such freedom comes responsibility: an obligation to make arguments using real evidence, and to respect and encourage different points of view in classes and in public discussions. It is not a shield that protects irresponsible action.

These are challenging, sometimes tumultuous times. But they are also very promising times for all of us. US Supreme Court Justice Sonia Sotomayor, when she visited our campus last fall, encouraged students to engage in their campus life and in civic life. She reminded them that “because you’re here, because of all the people who came before you who opened the doors to this college, you have to keep those doors open”.

Our student activists are calling attention to problems and making a difference. I can’t think of a place I would rather be right now than on an active college campus that is a marketplace of diverse and divergent ideas and opinions, in an atmosphere that welcomes all and looks to solutions, not divisions.